Dissolution of Marriage: severance of the marital status; “divorced”.

“Dissolution of marriage” is the legal term used in California for a divorce. Typically, one spouse files a “petition for dissolution of marriage.” That spouse becomes the Petitioner. The other spouse must respond within 30 days. That spouse is the Respondent.

Another term that is often used, and that can be confusing, is “termination of the marital status.” Technically, the severance of the marital “status” can take place independently and at a different time than a judgment which finalizes custody, child support, spousal support, property division and allocation, and responsibility for payment of attorneys’ fees. A final judgment that includes resolution of the final issues is often referred to as “Final Judgment of Dissolution of Marriage,” even though the actual “status” of the marriage may have been previously terminated.

When is my dissolution final?

You are not divorced until the final judgment of dissolution is entered. Neither dissolution nor termination of marital status can occur any earlier than six months after the day the Respondent was served with the petition. This doesn’t mean that you are automatically divorced six months after Respondent is served. Six months is a minimum amount of time that must pass before the marriage can be terminated. If the case is still pending after six months, and you wish to have the marital relationship severed in advance of the final dissolution decree, the marital status issue can be bifurcated (or separated) from the other issues and ruled on separately. However, there are financial obligations that may accompany such an action that you must seriously consider

Custody and Visitation

A parenting plan can often be the most difficult issue to resolve as parents separate. The Blonska Firm works with their client to effect a plan which will be for the best interests of the children, while still promoting the parents' ability to maintain a relationship with the children, including frequent and continuing contact with them. Of course, where the best interests of the children would be impaired by spending time with a parent who, for a variety of reasons, would not provide appropriate parenting, then we help our clients in adjusting custody plan toward the better parent. These issues are often emotional, and can have a lasting impact on the permanent relationship between parent and child. It is therefore important that an attorney be chosen that is aggressive, sensitive, and effective.

Custody cases are grueling. It is no accident that they are called “custody battles.” The only way to go into a custody case is to prepare for the fight of your life. Any conduct less than saintliness that relates to the children may come out in courtroom testimony. No other litigation is more draining. Custody cases are probably the most expensive area of family law litigation.

Support Calculations

If you will be paying or receiving child or spousal support, you will need to complete Income and Expense worksheet forms, and this declaration will need to be served on the other party and filed with the court. We will provide you with these worksheets and instructions on how to fill them out when you come into our office. These are time-consuming to complete, but accuracy is very important. Support is primarily determined by the gross income of each party, the number of children involved, and the amount of time that the children spend in each parent’s custodial care.

In California, child support is calculated by a complex formula computed through a software program. We use this same computer program in our office. The court is obligated to follow the computer numbers; however, the variables that are entered into the computer are subject to the same evidentiary requirements as any other type of information. The most important of those variables are the relative gross monthly income of the parents and the percentage of time each parent spends as the custodial parent. In certain situations tax considerations can be utilized to increase the amount of money available to both parents.

Generally, the court has no power to award or change support for a period that has already passed. This makes it very important to act promptly if your financial situation changes. For instance, if you lose your job, we will seek a modification in support. If your spouse has been paying voluntary support to you without a court order, but then stops paying, let us know right away so that we can seek an appropriate order.

California law now provides that support is generally payable directly from the paying spouse’s employer. We can discuss this in further detail, if needed.

It is very important that you keep accurate records of the payment or receipt of support. We hope the log we gave you will help.

Spousal support is not calculated by computer, and relies on such factors as length of the marriage, relative income of the parties, marital standard of living, needs of the parties, health and age of the parties, etc. For other factors, please ask us for a copy of Section 4320 of the Family Code.

Property Settlements and Division

Allocation and characterization of property and debts is an important part of the dissolution of marriage proceedings. All assets and debts must be characterized as community property or separate property, and there are overlaps between the two. For instance, even a home owned before marriage by one party which stays in the name of that spouse throughout marriage, may have a portion of its value characterized as community property.

When property changes from separate property to community property during marriage, important calculations determine what portion of its present value is to be attributed to separate and what portion to community.

In addition to characterization of property, valuation is also very important. Not only the value, but also the date of valuation, can affect the relative value to the respective spouses. Examples of assets subject to the requirement of characterization and valuation include businesses, pension plans, security portfolios, etc. Blonska & Kaufman is experienced in the handling of property issues, and works with qualified expert appraisers to maximize the benefit to its clients.

High Asset Property Valuation

Typically, when property is divided between spouses in a divorce, the court values the assets and liabilities as of the date of the trial. This is an important rule for the parties to understand, because assets that fluctuate in value may be worth considerably more or less as of the trial date, compared to other more stable marital assets that will also be divided by the court or by stipulation of the parties. In certain instances, a specific asset or liability should be valued sometime after the parties separate but before trial. This may be because a spouse that continues to operate a community property business after separation places the business in financial peril, and the non-offending spouse should not be punished with a decreased value in this community property asset

Oftentimes our client is the spouse that continues to work hard at the business after separation and as a result of these tireless efforts, the business is worth significantly more, or has enjoyed huge profits after separation as a result of this work. These efforts should be awarded to the party whose skill, industry, guidance and reputation caused the business to thrive. We work with our clients to discuss all of the options related to dividing the diverse community property asset and liability portfolio acquired during the marriage, and make sure that our clients understand all of their options.

Restraining Orders

What is a family law restraining order?A family law restraining order under the Domestic Violence Prevention Act is intended to prevent the recurrence of acts of domestic violence and to provide for a separation between the parties involved for a period of time sufficient to enable them to seek a resolution of the causes of domestic violence.

Do I qualify for a family law restraining order?If you are suffering abuse, you can qualify for a family Law restraining order if you have a close relationship with the other person. Meaning you are married, divorced, separated, domestic partners, dating, used to date, live together or used to live together, have child together, or you are otherwise related to each other.

If you do not qualify for a Family Law restraining order, there are other kinds of protective orders you can ask for. A civil harassment order can be used for neighbors, roommates, co-workers, and other people who are not related to you. A dependent or elder abuse restraining order is available to you if you are a senior citizen or dependent adult who has been abused.

How soon can I get the order, and how long does it last?After you submit your paperwork to the court the judge will decide whether to make issue a Temporary Restraining Order within 24 hours. Sometimes the judge makes the decision sooner, depending on your county court. At the time the judge makes a decision on your temporary order she will also give you a date to come back for a hearing on a restraining order that would last for 3-5 years. The initial temporary order will last until you come back to court for your hearing.

What if the restrained person doesn’t obey the order?Call the police. The restrained person can be arrested and charged with a crime. If the restrained person does violate the order, be sure to write down what happened, when, where, and the names of any witnesses. Get copies of police reports, and if you get hurt, get copies of any medical reports.

Even if the order hasn’t been served yet, call the police. If the restrained person is there, ask the officer to serve the restraining order.

Enforcement of Orders

Equally as important as obtaining an appropriate and effective order in a custody, dissolution, or support case is making sure the other party follows the court order. For support orders, the most reliable way to get the money to the supported party is to serve a wage assignment on the other party’s employer. Immediately after the court makes a support order, our paralegals prepare an Earnings Assignment Order, and file it with the court clerk. When the conformed Earnings Assignment Order is returned from court, we then serve it on the other party’s employer with an explanatory letter to the party’s payroll department indicating that the company is obligated by law to follow the terms of the order, and provide a support check directly to our client in the amount permitted by law.

Self-employed support obligors present a more challenging problem. If there is no employer to serve, we work with our clients to assist them in receiving their support when they inform us that the other party has not paid their child or spousal support obligation on time. We may file an Order to Show Cause to determine what amount of support is owed, and then record a support judgment against any property owned by the other party. We may request that the court enforce its own orders through a contempt proceeding, in which the most drastic remedy is putting the non-paying party in jail. Before the court sends anyone to jail, the court will first attempt to take less drastic steps to get the party to follow the court order.

If an opposing party fails to follow the terms of a custody or visitation order, we consider the option of filing an Order to Show Cause to notify the court of the offending party’s non-compliance with the order and request that the existing order be modified to meet the best interests of the children. Oftentimes it is appropriate to request attorney fees from the non-complying party, for having to go to the expense of enforcing a valid order that the court already made.

If a party fails to follow an order dividing real or personal property, relief can be sought by asking for an order that the court transfer the property, without the other spouse’s signature on the transfer document. This often occurs when a piece of property, such as an automobile, a boat, or the family residence is awarded to one party, either after trial or by way of a property settlement agreement, and the spouse that did not receive this piece of property refuses to sign the transfer documents. In these situations, we prepare a motion and request that the court clerk sign the transfer documents. We provide the transfer documents to the court in advance of the hearing date, and on the day of the hearing, the transfer documents are signed and provided to our client. It is typical to request attorney fees in the form of a sanction from the non-complying party, because if they would have complied with the order, the motion would not have been necessary.

Legal Separation

In virtually every respect, except for the severance of the marital status, legal separation is the same as divorce. In other words, issues of custody of children, child support, spousal support, division of property, and allocation of attorneys’ fees are dealt with and final judgment is entered on those issues. However, the marital status remains intact.

There are very few instances when legal separation is appropriate. One example is when neither party intends to remarry, and one of the spouses is uninsurable for medical benefits without going through the other spouse's medical plan. By staying married, an insurable interest may be preserved, and the otherwise uninsurable spouse may be able to continue to receive the benefits of medical insurance. Each circumstance is unique, and this approach may or may not apply to your case.

Sometimes parties want to file by way of legal separation because they think there may be a reconciliation. This isn't necessary since a dissolution of marriage action can always be dismissed upon reconciliation and prior to the severance of the marital status (which, by law, cannot be less than 6 months from the date the Respondent is served with the Petition).

Modifications of Orders

Frequently, after a divorce judgment has been entered, circumstances change and it may be appropriate for a divorce judgment to be modified. Blonska & Kaufman, LLP, knows when a modification is appropriate and when it is not and how best to proceed with the court.

Paternity

When a child is born outside of marriage, either parent can file a Petition for Paternity (or Parenthood) to establish the fact of parenthood, as well as parental rights and obligations. For instance, if there is an issue between a man and a woman as to who is the father of a child, either party can petition for determination of parenthood and have the man undergo a DNA test. If it proves he is the father, then custody, visitation, and child support will be determined in the same way they would be if it were a dissolution of marriage case.

There are several presumptions in the law with respect to who should be considered the father, and there are times when the court will find that a man who has held himself out as the father, and who has "stepped up to the plate" in providing a stable family environment for the child for a significant time, will actually be found to be the father over the claims of the biological father.